Case No. IT-01-47-T

TRIAL CHAMBER II

Before:
Judge Jean-Claude Antonetti, Presiding
Judge Vonimbolana Rasoazanany
Judge Bert Swart

Registrar:
Mr Hans Holthuis

Decision of:
11 July 2005

THE PROSECUTOR

v.

ENVER HADZIHASANOVIC
AMIR KUBURA

_____________________________________________

DECISION ON THE MOTION TO STRIKE THE TESTIMONY OF WITNESS ZI

_____________________________________________

Office of the Prosecutor:

Mr Daryl Mundis
Ms Tecla Henry-Benjamin
Mr Stefan Waespi
Mr Matthias Neuner

Defence Counsel:

Ms Edina Rešidovic and Mr Stéphane Bourgon for Enver Hadzihasanovic
Mr Fahrudin Ibrisimovic and Rodney Dixon for Amir Kubura

TRIAL ChambeR II ("Chamber") of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991 ("the Tribunal"),

NOTING the Motion to Strike the Testimony of Witness ZI filed confidentially by Counsel for the accused Enver Hadzihasanovic ("the Defence") on 5 July 2005 ("the Motion"), in which the Defence requests that the Chamber (a) order that an investigation be initiated with regard to the activities of Witness ZI in an HVO commission set up to collect exculpatory evidence for Croats indicted by the Tribunal and its possible simultaneous work for the Office of the Prosecutor ("the Prosecution") and (b) that the testimony of Witness ZI and Prosecution exhibits P81 to P89 be struck from the record in this case,

NOTING the Prosecution Response to the Defence Motion to Strike the Testimony of Witness ZI, filed confidentially by the Prosecution on 7 July 2005 ("the Response"), in which the Prosecution requests that the Chamber deny the Motion,

NOTING the Defence submission that on 23 June 2005 it received from a confidential source six documents taken from the Croatian State Archives showing the involvement of Witness ZI in the activities of an HVO commission set up to gather exculpatory evidence for Croats accused by the Tribunal and showing also that Witness ZI provided assistance to persons accused by the Tribunal in order to evade arrest and avoid transfer to the Tribunal,

NOTING that the Prosecution submits inter alia (a) that the remedy sought by the Defence is disproportionate, (b) that the Defence has failed to demonstrate the link between the alleged conduct of Witness ZI and his testimony in this case, (c) that the Defence should have sought leave from the Chamber to recall Witness ZI for additional cross-examination after having learned of the existence of two of the six documents on 22 April 2004, and (d) that there are no legal grounds for the Chamber to order an investigation into the conduct of Witness ZI,

NOTING that Counsel for the accused Amir Kubura informed the Chamber on 8 July 2005 that they would not respond to the Motion but reserve their rights in respect of the subject of the Motion,

CONSIDERING that the Defence has submitted the six documents to the Chamber dated 19 August 1997, 10 November 1997, 9 February 1996, 17 November 1995 of which two are undated as well as the correspondence on the issue between the Defence and Prosecution dated 24 and 28 June 2005 respectively,

CONSIDERING that, pursuant to Rule 92 bis of the Rules of Procedure and Evidence ("the Rules"), the statement of Witness ZI was admitted as a Prosecution exhibit on 4 February 2004, that Witness ZI appeared before the Chamber for cross-examination on 4 and 5 March 2004, and that Prosecution exhibits P81 to 89 were admitted by written Decision of the Chamber on 2 August 2004,

CONSIDERING that the Prosecution case and the Defence case were concluded on 23 July 2004 and 11 April 2005 respectively,

CONSIDERING that the Motion has been submitted after the conclusion of the Defence case and that the Defence requests the Chamber to rule on the credibility of Prosecution Witness ZI’s testimony on the basis of information in six "new documents" without however requesting that the documents be admitted as Defence exhibits,

CONSIDERING that the jurisprudence of the Tribunal recognises the re-opening of the case as a procedure to allow the parties to present new evidence which was not in their possession before the conclusion of their case-in-chief but that this possibility is subject to stringent conditions of admissibility as set out in the Decision on the Prosecution’s Application to Re-open its Case issued by the Chamber on 1 June 2005 ("the Decision")¹,

CONSIDERING that, even if the Defence has not expressly requested leave to re-open its case, its request to strike the testimony of Witness ZI and to withdraw exhibits previously admitted on the basis of information in new documents is, under the circumstances of this case, tantamount to a request to re-open its case and that, consequently, the Chamber must apply the rules governing an application to re-open the trial,

CONSIDERING that it must first be established whether the Defence has demonstrated satisfactorily that, despite due diligence, it would not have been able to obtain the six documents and the information therein before the conclusion of its case²,

CONSIDERING first that the Defence claims that the six documents were taken from the archives of the Republic of Croatia and that they were received from a confidential source but does not further elucidate that confidential source to the Chamber or the circumstances which made it possible for it to obtain the documents,

CONSIDERING that this minimal information does not allow the Chamber to establish whether the Defence might not have obtained the six documents before the conclusion of its case,

CONSIDERING second that this case relates to a conflict which pitted the Croats and Muslims of Bosnia and Herzegovina against one another and that many of the Prosecution witnesses are of Croatian origin,

CONSIDERING that the name of Witness ZI, a Bosnian Croat, was on the Prosecution’s witness list of 10 October 2003, that the Prosecution sought the admission of his statement pursuant to Rule of 92 bis of the Rules on 18 December 2003, and that, on 12 January 2004, the Defence requested that the Chamber order "the witnesses to be present during the trial for cross-examination as their statements in the main deal with the alleged identity, activities and subordination of armed forces or individuals who were allegedly involved in the perpetration of offences charged in the Indictment"³,

CONSIDERING that, given the nature of this case, the archives of the Republic of Croatia are archives which a diligent party might identify as those which should be consulted or searched in order to obtain relevant information about events or individuals,

CONSIDERING that the Defence, during the hearing of 4 March 2004, did in fact examine Witness ZI using a document about him, a document that "stems from the archives of the Republic of Croatia at a time when the Defence team conducted its investigation there⁴,

CONSIDERING that the Defence has not provided information to the Chamber indicating that the six new documents were not in the archives of the Republic of Croatia at the time the Defence was conducting its searches there or during the period between 10 October 2003 and 3 March 2004,

CONSIDERING that, in view of the above, the Chamber finds that the Defence did not demonstrate due diligence in obtaining the six documents and that, accordingly, it has not satisfied the conditions required for re-opening the case,

CONSIDERING that there is no reason to issue this Decision confidentially,

FOR THE FOREGOING REASONS

PURSUANT TO Rules 85 and 89(B) of the Rules,

DENIES the Motion.

Done in French and English, the French version being authoritative.

________________________
Jean-Claude Antonetti
Presiding Judge Trial Chamber II

Done this eleventh day of July 2005
The Hague, The Netherlands

[Seal of the Tribunal]